Boards of Inquiry and the Canadian Forces

20 October 2026

 

[Author’s note: The subject of this Blog post was prompted by discussion arising from the tragedy that occurred at Canadian Forces Base Wainwright over the past week-end.  Before turning to the subject of this blog post, I wish to express my personal condolences to the personnel and families affected by these events.  It is a deeply personal matter for many of us.  Three of the soldiers who lost their lives were from my regiment, the Princess Patricia’s Canadian Light Infantry.  During my career, I frequently participated in training at Wainwright.  A little over 25 years ago, I was posted to what was then called Land Forces Western Area Training Centre as staff.    

This is a time for mourning and for comforting those who have been affected by these tragic events, and many of us will feel compelled to help.  One way that we can assist, for those of us who are able to do so, is to donate blood and plasma.  I have seen such calls from colleagues – particularly medical professionals – and I echo that sentiment.

Another way we can assist is by avoiding spreading erroneous information.  Rumour and conjecture tend to spread exponentially on social media, and I have seen colleagues urge others to avoid doing so.  I echo that sentiment as well.]

 

Following the tragic events at Canadian Forces Base (CFB) Wainwright this past weekend, it was inevitable that discussion would turn to the conduct of a Board of Inquiry (BoI) in relation to those events.  You will undoubtedly hear people musing about whether the Canadian Forces (CF) should be “investigating itself”.  You may hear self-proclaimed experts suggesting that BoI are “deficient” or “not sufficiently transparent or independent” to perform their functions.

I contend that such commentary is misguided and even erroneous.  It is predicated upon a mischaracterization of BoI.  I also contend that mischaracterizing BoI during such time of grief and emotional turmoil can do more harm than good.

Ultimately, when people ask: “Can we trust BoI to produce independent and transparent reports?” they are asking the wrong question, and, in doing so, demonstrate that they do not understand the role and functions of BoI.

And I further contend that if decision-makers like the Minister of National Defence (MND) and the Chief of the Defence Staff (CDS) rush to assure Canadians that the BoI will be “independent and transparent”, or if they make commitments to “independent and transparent” reporting, they demonstrate that they, too, lack an understanding of what BoI are, and are not.  In their rush to appease critics, there is a risk that they will contribute further to misinformation and misunderstanding.

I do not propose to provide profound analysis of what a BoI will investigate in relation to the tragic events in Wainwright.  As I indicated in my “Author’s note” above, it is premature for speculation.  However, at this juncture, it would be prudent to describe the legislative basis for BoI and to provide an explanation about their nature and purpose to inform the public about what these mechanisms are, and are not, intended to do, and to contrast then from similar, but distinct, functions and processes.

 

Boards of Inquiry

Boards of Inquiry are not criminal investigations.

They are not coroners’ inquests.

They are not a Fire Marshal’s fire safety investigation.

And they are not Commissions of Inquiry under the Inquiries Act[1].

They are investigative tools to support the Minister of National Defence and other CF statutory decision-makers in the governance of the CF.

They are, by their very nature, internal inquiries.

When people criticize BoI for a lack of “independence” or “transparency”, I am inclined to respond: “Tell me that you do not understand the nature and purpose of BoI without saying you do not understand the nature and purpose of BoI …”

BoI are not transparent to the public.  BoI are not conducted by independent actors.  But they aren’t intended to be independent and public.

And that doesn’t mean that the public should not be informed about matters affecting the CF, its governance, or its personnel.

But those factors are relevant to any examination or critique of BoI, and they are relevant when considering our expectations regarding the conclusions and recommendations produced by BoI.

 

Legislative Basis

The authority for Boards of Inquiry can be traced to sections 45 and 45.1 of the National Defence Act (NDA)[2], which, for clarity of discussion, I will reproduce below in their entirety:

Boards of Inquiry

Convening boards

45 (1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.

Powers

(2) A board of inquiry has, in relation to the matter before it, power

(a) to summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person’s control that it considers necessary for the full investigation and consideration of that matter;

(b) to administer oaths;

(c) to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and

(d) to examine any record and make any inquiry that the board considers necessary.

Access to on-board recordings

(3) For greater certainty, a board of inquiry may have access to an on-board recording, as defined in subsection 22(1) of the Aeronautics Act, only if it is made available under that Act.

Witness not excused from testifying

 

45.1 (1) No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

Answer not receivable

(2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

 

Note the purpose identified at subs 45(1): BoI are intended to inform the Minister (of National Defence) or any other such authorities prescribed or appointed by the Minister, “… on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member …”.

Parliament did not empower the Minister (or any authority prescribed or appointed by the Minister) to convene BoI in order to inform the public.

That certainly does not bar the Minister from informing the public of matters in the administration of the affairs of the CF in order to ensure or improve Canadians’ confidence in their armed forces.  But the legislative intent of Parliament is an important factor, and that distinguishes CF BoI from inquires that are expressly intended to be public.

The relatively brief statutory framework under the NDA is amplified by Chapter 21 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).  The regulations contained in that chapter – which are predominantly Ministerial regulations enacted pursuant to subs 12(2) of the NDA – provide direction to the convening authorities (prescribed or appointed by the Minister) and the Boards themselves.

Chapter 21 of the QR&O also provides for Summary Investigations, which perform a similar function as BoI, but on what could be characterized as a “lower level” and for simpler matters.

This legislative direction is further amplified by Defence Administrative Orders and Directives (DAOD), specifically the 7002 series:

DAOD 7002-0, Boards of Inquiry and Summary Investigations

DAOD 7002-1, Boards of Inquiry

DAOD 7002-2, Summary Investigations

DAOD 7002-3, Subjects of Investigations and References

DAOD 7002-4, Examination of Witnesses

 

These DAOD are not regulations.  They are policy instruments that provide direction to the CF personnel and others who are responsible for the conduct of these investigations and inquiries.

These policy instruments are further amplified by manuals and guidance offered to the Summary Investigating officers and BoI.  They are also aided by the Administrative Investigation Support Centre (AISC), which falls under the Director Special Examinations & Inquiries (DSEI), which, in turn, falls under the Chief Review Services (CRS).

 

BoI for Death and Injury

We can be certain that a BoI will be convened in relation to the tragic events at CFB Wainwright.  Article 21.46 of the QR&O, a regulation enacted by the Minister, directs that an administrative investigation shall be ordered where an officer or non-commissioned member (NCM) of the Regular Force, of the Reserve Force (when the member is “on service”), or of the Special Force[3] dies other than as a result of wounds received in action.  The same article directs that an administrative investigation will be ordered if an officer or NCM suffers an injury, other than one received in action, and a medical officer certifies the injury to be: (a) serious; or (b) likely to cause a permanent disability.

There is a requirement for a BoI or a Summary Investigation.  We can be certain that this matter will be the subject of one or more BoI.

By virtue of art 21.47 of the QR&O, a BoI into death or injury “… shall contain findings as to the cause of the injury or death and contributing factors related to military service.”

However, this provision does not limit the scope of a BoI.  And we can anticipate that the Convening Authority that eventually convenes one or more BoI in relation to the tragic events at CFB Wainwright will also seek findings in relation to the training that led to the incident, and to provide recommendations relating to training safety and other relevant matters.

It is unlikely that individual BoI will be convened for each officer or NCM who died or was injured as a result of the events at CFB Wainwright.  It is far more likely that a comprehensive and well-resourced BoI will be ordered to examine all of the deaths and injuries.  (See art 21.18 of the QR&O.)

However, it has only been three days since the incident, and there will undoubtedly be greater clarity following upon initial investigations (see below).  There is  broad flexibility regarding the number and scope of BoI that could be convened.

 

BoI are not criminal investigations

It is premature for any BoI to commence gathering evidence.  Undoubtedly, relevant CF and Department of National Defence (DND) authorities have already begun to conduct “staff checks” to identify personnel and resources to support one or more BoI once such steps may be taken.  However, before a BoI is convened and begins to gather evidence, there is what might be characterized, in military terms, a priority of work.

Before administrative investigations begin in earnest, a criminal investigation must be conducted.

In making this statement, I am not suggesting that there has been any criminal wrong-doing.  At this time, military and civilian authorities have far more questions than they do answers.  Investigations are conducted to identify credible and reliable information in order to learn what transpired and why.  There are different types of investigations, some of which have factors and principles that are in tension.

A useful distinction can be drawn between criminal investigations and administrative investigations such as BoI.  Criminal investigations will typically trigger rights such as the right to counsel[4] and the right to remain silent (i.e., the right against self-incrimination)[5].  Administrative investigations do not necessarily trigger a right to counsel (and certainly not in the same manner as criminal investigations) or a right to remain silent.

Indeed, s 45.1 of the NDA expressly indicates that: “No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.”  And subs 45.1(2) then provides that any statement compelled under subs 45.1(1) may not generally be used against that witness in any disciplinary, criminal, or civil proceeding (save for prosecution for perjury or a similar offence/infraction relating to that testimony).

The conduct of concurrent criminal and administrative investigations may jeopardize the integrity of one or both investigations because of the tension between the right to silence in a criminal process and the right to make representations in an administrative process.[6]  Consequently, criminal investigations will typically proceed before a BoI commences its inquiry.  A BoI may be convened before a criminal investigation is completed, and it may even commence preliminary processes such as planning or collecting information (e.g., relevant policies, identifying potential witnesses, etc.), but the BoI will generally refrain from what may be termed “active inquiry” until the criminal investigation is completed.

And the conduct of a criminal investigation does not necessarily mean that decision-makers believe that one or more criminal offences may have occurred.  Where there is a loss of life or serious injury arising from an incident, one of the reasons why a criminal investigation will be conducted is to determine whether a criminal offence occurred.  In other words, one potential outcome of such an investigation is that it may rule out criminal misconduct.

Once a criminal investigation is completed, administrative investigations such as BoI might then commence (depending upon the outcome of the criminal investigation).

 

A BoI is not a Fire Marshal’s Investigation

There are already reports that the Fire Marshal has commenced an investigation.  In light of the nature of the tragedy, that is not surprising.  And that represents an investigation that is distinct from a BoI, notwithstanding that both investigations will examine similar evidence.

 

A BoI is not a coroner’s inquest

Nor is a BoI a coroner’s inquest.  Legislation varies between provinces. I am not an Alberta practitioner, and I would not presume an expertise with Alberta legislation.  However, Canadian provinces have similar legislation regarding the conduct of coroner’s inquests. And, for the purpose of the present discussion it should suffice to provide some general observations regarding coroners.

A coroner is a public official who is mandated under provincial legislation to investigate deaths that are sudden, unexpected, violent, suspicious, or not caused by natural disease.  A coroner is distinct from a medical examiner, although there are many coroners who are also doctors.  Coroners will rely on medical examiners and pathologists to produce relevant evidence and reports.

A coroner will not always conduct an inquest.  In some instances, a coroner’s investigation will rely principally on examination of evidence such as pathology or medical examiner reports, police investigation reports, or similar documents.  It can be likened to a ‘paper inquiry’.

Inquests are formal inquiries that bear some resemblance to court processes in order to gather evidence that might not be readily available.  An inquest may compel attendance through a summons and receive evidence under oath.  Those powers are similar to the powers of a Board of Inquiry.

In Ontario (as in most provinces) coroners’ inquests are open to the public save in exceptional circumstances when the coroner conducts all or part of the inquest in camera.  There are a variety of ‘public’ aspects to a coroner’s inquiry:

• They are open to the public and news media. Anyone can attend the proceedings.  Some inquests are livestreamed online, thereby supporting greater accessibility.
• The inquest is supported by a jury from the community. Inquests are held before a five-person jury made up of local community members who listen to the evidence.
• The verdict and recommendations are public. At the end of the hearing, the jury issues answers regarding how the person died and offers safety recommendations. This dataset of recommendations is part of the Ontario Data Catalogue and is completely accessible to the public.
• There is a public schedule. Upcoming and active hearings are posted publicly on the Ontario Government Newsroom.

 

Coroner investigations and inquests serve a public function, established under legislation.

 

A BoI is not a Commission of Inquiry under the Inquiries Act

Parliament enacted the Inquiries Act[7] to provide for public inquiries “… into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.”  Provinces, including Ontario and Alberta, have enacted similar legislation.[8]  In fact, all provinces have enacted similar legislation, typically called the Public Inquiries Act (in British Columbia, the relevant legislation is the Public Inquiry Act.)  Some legislation may also require a public inquiry following the exercise of powers under that legislation.  A relatively recent notable example was the Public Inquiry following the federal government’s reliance on the Emergencies Act[9] in 2022.

The inquiries under these enactments are intended to be public.

And the federal Inquiries Act includes a provision that highlights the distinction between BoI and public inquiries.  Section 6 of the Inquiries Act states:

The minister presiding over any department in the federal public administration may appoint, under the authority of the Governor in Council, a commissioner or commissioners to investigate and report on the state and management of the business, or any part of the business, of the department, either in the inside or outside service thereof, and the conduct of any person in that service, so far as the same relates to the official duties of the person.

 

The Minister of National Defence therefore has the authority to convene an inquiry under at least two different Acts: the NDA and the Inquiries Act.  An inquiry under the latter is expressly intended to be public.  An inquiry under the former is not.

An inquiry under the Inquiries Act is also intended to be arms-length from the government.  The extent to which such Commissions of Inquiry might be viewed as “independent” depends upon how one might define that term.  Frequently, commissioners appointed under the Inquiries Act are judges.  Judges enjoy institutional independence in their role as judges.  However, that independence, which has been scrutinized under s 11(b) of the Canadian Charter of Rights and Freedoms, arises from their judicial appointment.  The appointment of commissioners, even when they are normally judges, does not offer the same protection.

Commissions of Inquiry under the Inquiries Act may be characterized as being an extension of the Executive branch of government, not the judiciary.  They are nevertheless typically regarded as arm’s length from the subject matter and government department that is the subject of inquiry.  And the public nature of their process provides for a degree of public confidence.

However, that arm’s length standing can be distinguished from the officers and NCM who are appointed to BoI.  Art 21.08 of the QR&O provides the Minister’s direction regarding the composition of a BoI.

Members appointed to a BoI are not independent.  Nor are they arm’s length from the CF.  When a Convening Authority appoints officers and NCM to a BoI, and when specialists and advisors are assigned to the BoI, steps will be taken to ensure that they were not involved in the subject matter being investigated.  They must not have any apparent conflicts of interest.  But they are not independent or arm’s length from the institution.

And I cannot over-stress this point: under the legislative regime giving rise to BoI, they are not expected to be independent or arm’s length from the CF.

I suggest that objections about their lack of “independence” are misplaced and misinform the relevant context.

There is no expectation under the NDA or the QR&O that BoI members must be independent or even arm’s length from the CF.  As I note above, even Commissioners of Inquiry under the Inquiries Act are not truly independent.

In the same way that a Superior Court Judge may be appointed as a commissioner of inquiry, a military judge may be appointed as a Board of Inquiry.  However, unlike the common practice of appointed Superior Court Judges as commissioners of inquiry, no military judge has been appointed as a BoI since the significant reform of the NDA in 1998.

 

Policy Decisions

Nevertheless, the Minister and CF decision-makers may see value in informing the news media or the public of developments with any eventual BoI (just as there will be merit regarding informing the news media of the results of any criminal investigation or safety investigation).  The CDS has already purportedly “committed” to making the BoI report public.

And that commitment merits some scrutiny.  As I note above, even if a BoI is convened relatively quickly, it will not commence its inquiry until other, potentially conflicting, investigations, such as any criminal investigation, are completed.

And the duration of a BoI tends to be commensurate with the complexity of the matter being investigated as well as the anticipated public scrutiny.  Any BoI convened into this matter could take several months to be completed.  It would not ne unreasonable to expect it to take a year or longer.  General Carignan was appointed CDS July 2024.  Whether she is still CDS when the BoI is completed remains to be seen.  [And that comment is not intended as some veiled criticism – a CDS tenure of three years is not uncommon.]

But here is the problem with committing to disclosure of the BoI report: that does not make the BoI “transparent” or “public”.  A BoI is more than just the final report.  It includes the process itself.  And, unlike Commissions of Inquiry, BoI are not expected to be public.  Art 21.12 of the QR&O directs:

21.12 – MEETINGS NOT OPEN TO THE PUBLIC

Unless the convening authority otherwise directs, a board of inquiry shall exclude from its meetings all persons except:

a.  a witness while giving evidence;

b.  an officer or non-commissioned member whose presence is permitted under paragraph (4) of article 21.10 (Procedure) or under article 21.14 (When Adviser to Board of Inquiry Permitted);

c.  a person whose attendance is required by the president; and

d.  counsel while his client is giving evidence.

 

The transparency of Commissions of Inquiry does not arise solely from the fact that their reports are public; it arises from the public nature of the process.

And I contend that the limited scope of transparency alluded to in the CDS’ commitment is a potential pitfall that could undermine the merit of any BoI.

When members of a BoI are aware that their Report (but not their process) will be made public, that can affect their approach to issues, particularly where the matter is prominent in public discourse and they are aware that their report will be the subject to extensive scrutiny.

Ironically, one of the benefits of a process and report that is meant principally for internal dissemination is that those conducting the investigation will be able to make bluntly frank observations and recommendations.  Knowledge that the report will be made public may cause the BoI to temper their observations and recommendations out of concern for the eventual “narrative”.

The DND /CF Ombudsman has ventured opinions about the Conduct of BoI.  In 2005, the DND/CF Ombudsman published the report “When a Soldier Falls: Reviewing the Response to MCpl Rick Wheeler’s Accidental Death”.  In 2015, the DND/CF Ombudsman published “Boards of Inquiry: Families in Focus” as a follow-up

While I do not propose to delve in detail, here, what I believe the Ombudsman got “right” or “wrong” in those reports, the Ombudsman focused (among other subjects) on the need for “independence” and “transparency” in BoI.  And a challenge arising from conclusions drawn about the supposed “lack of transparency” or “lack of independence” in BoI is that such criticisms assume something that is inconsistent with the legislative basis for BoI: that they are somehow intended to be a tool for public accountability or public transparency.

And that simply isn’t the legislative intent.

And misconceptions about BoI can directly influence the conclusions drawn, and recommendations made, by BoI.  And I suggest that this influence manifests in BoI that concern emotional matters in which there was a risk of public scrutiny.

Convening Orders for BoI into the death of CF personnel will inevitably include direction that the BoI shall make findings about whether: (a) CF member was on duty at the time of death; and, (b) whether the death was attributable to military service.  Such findings quickly become a source of tension and dispute, even where evidence is relatively uncomplicated.  And, where matters are much more nuanced, findings such as these quickly become politicized.  And I suggest that there can be a risk that findings are made which are incongruous with evidence, out of fear of public criticism or scrutiny by news media.

I mention this issue to highlight the distinction between a process that is entirely public (such as a Commission of Inquiry) and a process, like a BoI, which is not designed or intended to be public, but where policy makers and decision-makers opt to make a portion of the process – namely the final report – public.  (Even then, the extent to which the final report will be made public has yet to be determined.)

First, making a final report public does not make the process public.

Second, an early “commitment” to making final report public (but not the process) gives rise to the potential problem that this will improperly influence the conclusions drawn, and recommendations made, by the BoI.

To be clear: I am not suggesting that the tragic events that occurred at CFB Wainwright do not merit public inquiry.

What I am saying is that those who criticize BoI under the NDA for a lack of transparency or independence demonstrate that they do not actually understand the role and purpose of such BoI.

And if a Minister or CDS commits to making a BoI report public, they demonstrate that they are falling into the same trap of mischaracterization.

If the Minister believes that a public inquiry is warranted, then he has the means to make that happen.

But it isn’t a BoI.

 

[1] Inquiries Act, RSC 1985, c I-11.

[2] National Defence Act, RSC 1985, c N5.

[3] Although the NDA, id, provides for the creation of a “Special Force”, pursuant to s 16, there is no Special Force presently constituted.

[4] Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c. 11, s 10b [Charter]; R v Brydges, 1990 CanLII 123, [1990] 1 SCR 190; R v Sinclair, 2010 SCC 35; R v Manninen, 1987 CanLII 67, [1987] 1 SCR 1233.

[5] Charter, id, s 7; R v Hebert, 1990 CanLII 118, [1990] 2 SCR 151; R v Singh, 2007 SCC 48; R v Oickle, 2000 SCC 38.

[6] Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86, [1995] 2 SCR 97.

[7] Inquiries Act, RSC 1985, c I-11.

[8] Public Inquiries Act, 2009, SO 2009, c 33, Sch 6; Public Inquiries Act, RSA 2000, c P-39.

[9] Emergencies Act, RSC 1985, c 22 (4th Supp), s 63.